Wyatt Employment Law Report


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Walmart Announces Wage Increases

By Colby F. Block

On Thursday, Walmart announced several changes to its compensation and benefits structure—the most noticeable being its hourly wage increase. Walmart states that, by April 2015, its entry-level wage will start at $9 an hour, and it will go up to $10 an hour by early 2016.

Other new measures include additional training and opportunities for internal promotion, which Walmart CEO Doug McMillon states will create clearer paths to better jobs and higher pay.

wage increaseThese changes are significant—Walmart is the largest private employer in the country, and this will increase wages for 500,000 of its employees. The cost to Walmart over the next year is projected at one billion dollars, but this number is actually small considering the company’s almost $500 billion in annual revenue.

Walmart’s announcement has already created quite the media frenzy. And some—noting that it is not altruism behind these changes—are already questioning Walmart’s motives. Walmart is a business, after all, so there is a bottom line. Is the goal to Continue reading


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President Obama’s Executive Actions on Immigration

By Matthew P. Gunn

November 20, 2014, President Obama announced a series of executive actions aimed at helping to modernize some aspects of the immigration system which would encourage family unity and strengthen immigration options for foreign nationals studying and pursuing work in highly technical fields. At this point, the details for implementation of many of the initiatives outlined by the President are vague, but we will provide guidance here where possible and continue to report new details on the President’s plans as more specifics emerge.

 

The four main programs outlined in President Obama’s action are:

  1. Cracking Down on Illegal Immigration at the Border: the President’s actions will increase the chances that anyone attempting to cross the border illegally will be caught and sent back to his or her home country. The President’s actions will also centralize border security command-and-control to continue to crack down on illegal immigration.
  2. Deporting Felons, Not Families: the President’s actions focus on the deportation of people who threaten national security and public safety. He has directed immigration enforcement to place anyone suspected of terrorism, violent criminals, gang members and recent border crossers at the top of the deportation priority list.
  3. Accountability — Criminal Background Checks and Taxes: The President is also acting to hold accountable those undocumented immigrants who have lived in the U.S. for more than five years and are parents of U.S. citizens or Lawful Permanent Residents. By registering and passing criminal and national security background checks, millions of undocumented immigrants will start paying their fair share of taxes and temporarily stay in the U.S. without fear of deportation for three years at a time.
  4. Streamline Immigration to Boost our Economy and Promote Naturalization for Those Who Qualify.

 

We are not going to cover the first two points raised here because border security and removal priorities, while important to the country, are not really the subject of this article. Our purpose is to provide guidance to companies and individuals on options they and their employees have, family members and future job applicants may under the President’s plan to obtain employment authorization and/or permanent residence. Therefore, we will outline the President’s plans for points three and four listed above.

ACCOUNTABILITY – CRIMINAL BACKGROUND CHECKS AND TAXES

  • DHS will establish a new deferred action program for parents of U.S. Citizens or LPRs who are not enforcement priorities and have been in the country for more than five years. Individuals will have the opportunity to request temporary relief from deportation and work authorization for three years at a time if they come forward and register, submit biometric data, pass background checks, pay fees and show that their child was born before the date of the President’s announcement on November 20, 2014.
  • Under the initial DACA program, young people who had been in the U.S. for at least five years, came as children and met specific education and public safety criteria were eligible for temporary relief from deportation as long as they were born after 1981 and entered the country before June 15, 2007. DHS will expand DACA so that individuals who were brought to this country as children can apply if they entered before January 1, 2010, regardless of how old they are today. Going forward, DACA relief will also be granted for three years.

Streamline Immigration to Boost our Economy

  • Providing portable work authorization for high-skilled workers awaiting LPR status (including their spouses). DHS will make regulatory changes to allow these workers to move or change jobs more easily. Also, DHS is finalizing new rules to give certain H-4 spouses employment authorization as long as the H-1B spouse has an approved LPR application.
  • DHS will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment and generating revenue in the U.S., to ensure that our system encourages them to grow our economy.
  • In order to strengthen educational experiences of foreign students studying science, technology, engineering and mathematics (STEM) at U.S. universities, DHS will propose changes to expand and extend the use of the existing Optional Practical Training (OPT) program and require stronger ties between OPT students and their colleges and universities following graduation.
  • DHS will clarify its guidance on temporary L-1 visas for foreign workers who transfer from a company’s foreign office to its U.S. office. DOL will take regulatory action to modernize the labor market test that is required of employers that sponsor foreign workers for immigrant visas while ensuring that American workers are protected.
  • Due to barriers in our system, U.S. citizens and LPRs are often separated for years from their immediate relatives while waiting to obtain LPR status. To reduce the time these individuals are separated, DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain violations before departing the United States to attend visa interviews.

It is important to note that at this point none of the President’s new programs are available for filing to obtain benefits. Also, these programs are not an amnesty. Applying for and receiving Deferred Action does not convey legal immigration status to an Applicant. It means that since CIS recognizes you are not a removal priority, CIS will allow you to obtain employment authorization. In other words, “if we’ve agreed not to take steps to remove you, you should be allowed to work and pay taxes like everyone else.” Don’t get me wrong, Deferred Action is a step in the right direction for many millions of unlawful immigrants, but it does not convey any legal immigration status on the Applicant. It remains to be seen how long Deferred Action will remain available for individuals and if Deferred Action being granted will ultimately lead to a path to permanent residence or some form of legal immigration status down the road.

On the business side of things, there was little to no detail as to how any of the President’s plans will be implemented or in what time frame. The grant of employment authorization to H-4 spouses would be a welcomed change. Further benefits for STEM students and graduates would also be a wise move on the part of the government to ensure that the U.S. continues to maintain its position as the global leader in research and development. That said, it may be some time before any of these measures become a reality and what form they will take.

We will provide you with the details as more information emerges . In the meantime, if you have questions or want to know what steps, if any, you might be able to take now to prepare yourself or your employees to obtain future benefits, please contact someone in the Wyatt Tarrant & Combs Immigration Group.


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New Workforce Development System Passed by Congress and Signed Into Law

By Edwin S. Hopson

According to a July 22, 2014 press release issued by the House Education and Workforce Committee, the Congress has passed and President Obama has signed into law the Workforce Innovation and Opportunities Act (WIOA).

Noting the following problems:

“By 2022 the United States will fall short by 11 million the necessary number of workers with postsecondary education, including 6.8 million workers with bachelor’s degrees, and 4.3 million workers with a postsecondary vocational certificate, some college credits or an associate’s degree.

Fifty-two percent of adults (16-65) in the United States lack the literacy skills necessary to identify, interpret, or evaluate one or more pieces of information; a critical requirement for success in postsecondary education and work.

Individuals with disabilities have the highest rate of unemployment of any group, and more than two-thirds do not participate in the workforce at all.”

The House Committee noted:

“WIOA is bipartisan, bicameral legislation that will improve our nation’s workforce development system and help put Americans back to work. Now more than ever, effective education and workforce development opportunities are critical to a stronger middle class. We need a system that prepares workers for the 21st century workforce, while helping businesses find the skilled employees they need to compete and create jobs in America.”

The new law streamlines the old system by:

“Eliminating 15 existing programs.

Applying a single set of outcome metrics to every federal workforce program under the Act.

Creating smaller, nimbler, and more strategic state and local workforce development boards.

Integrating intake, case management and reporting systems while strengthening evaluations.

Eliminating the ‘sequence of services’ and allowing local areas to better meet the unique needs of individuals.”

WIOA also provides greater value, according to the Committee, by:

“Maintaining the 15 percent funding reservation at the state level to allow states the flexibility to address specific needs.

Empowering local boards to tailor services to their region’s employment and workforce needs.

Supporting access to real-world education and workforce development opportunities through:

“On-the-job, incumbent worker, and customized training;

Pay-for-performance contracts; and

Sector and pathway strategies.”

Another goal of the new law is improving coordination by:

“Aligning workforce development programs with economic development and education initiatives.

Enabling businesses to identify in-demand skills and connect workers with the opportunities to build those skills.

Supporting strategic planning and streamlining current governance and administration by requiring core workforce programs to develop a single, comprehensive state plan to break down silos, reduce administrative costs, and streamline reporting requirements.

Ensuring individuals with disabilities have the skills necessary to be successful in businesses that provide competitive, integrated employment.”

Finally, WIOA seeks to improve outreach to disconnected young people by:

“Focusing youth program services on out-of-school youth, high school dropout recovery efforts, and attainment of recognized postsecondary credentials.

Providing youth with disabilities the services and support they need to be successful in competitive, integrated employment.”

For more information in the Louisville, KY, Lexington, KY or New Albany, IN areas, contact Ed Hopson.

For more information in the Memphis, TN, Nashville, TN or Jackson, MS areas, contact Odell Horton.


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White House Seeking Expansion of Overtime Pay Under the FLSA

By Mitzi D. Wyrick

President Obama has directed the U.S. Department of Labor (“DOL”) to revise regulations under the Fair Labor Standards Act to make more workers eligible for overtime pay.  Specifically, the DOL will be reviewing the executive, professional, and administrative exemptions, sometimes referred to as the “white-collar” exemptions from the requirement to pay overtime for hours worked over 40 in a workweek.  The salary basis threshold, which is currently set at $455 per week, will be one area of focus.  In addition, the White House has directed the DOL to review other exemptions changes to which would result in more overtime pay based on the type of work performed.  For example, under the revised regulations thought to being considered, store managers who also perform non-management duties may be entitled to overtime pay unless they can demonstrate that the majority of their time is spent performing management work.  Read more about it at:  http://t.co/KgEmpdqfZT


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New NLRB Members Confirmed by the Senate

By Edwin S. Hopson

On July 30, 2013, the Senate voted to confirm the President’s recent nominations of Democrats Kent Hirozawa and Nancy Schiffer to be Members of the National Labor Relations Board.  Hirozawa is currently Chief Counsel to NLRB Chairman Pearce.  Schiffer was most recently Associate General Counsel of the AFL-CIO.  The Senate also confirmed the reappointment of Chairman Mark Pearce, also a Democrat.

The vote for confirmation as to Hirozawa and Schiffer was 54 to 44.  Pearce was confirmed by a vote of 59 to 38.

The nominations of Republicans Harry Johnson and Phillip Miscimarra to the NLRB were confirmed by “voice vote.”

Thus, for the first time in about 10 years, there is a five member Board in place as confirmed by the Senate.


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Union Official Calls on President Obama to Fix the Recess Appointment Problems at the NLRB

By Edwin S. Hopson

In late February, the AFL-CIO Executive Council called on Senate Democrats to empower the National Labor Relations Board or else.  “Now we demand that the president name all five people to fill those NLRB positions and that the Senate vote promptly,” according to Communications Workers of America union (CWA) President Larry Cohen, a member of the council in a press release found on the CWA website.  Cohen went on to say:  “We expect the Democrats to use every option, including the talking filibuster or rules changes to prevent the Republicans from blocking this. If they don’t, they can expect us to go after them like we never have before — in the nation’s capital and in their districts — wherever they go.”

According to the CWA, “as it stands, the NLRB is toothless,” referring to the US Court of Appeals for the District of Columbia Circuit decision in Noel Canning v. NLRB issued in January 2013, which invalidated President Obama’s three recess appointments to the NLRB.  Again, according to the CWA, “[i]n knocking down three of the board’s five members, the Noel Canning ruling completely vaporized the NLRB’s ability to enforce US labor law.”


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Secretary of Labor Solis Is Resigning

By Edwin S. Hopson 

On January 9, 2013, U.S. Secretary of Labor Hilda L. Solis submitted her resignation to President Obama.  She is apparently returning to private life in California.  In a press release on the Labor Department’s website, she is reported to have stated, in part: “Growing up in a large Mexican-American family in La Puente, California, I never imagined that I would have the opportunity to serve in a president’s Cabinet, let alone in the service of such an incredible leader.”